Robby Tetelepta v. Eric H. Holder Jr. , 448 F. App'x 769 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBBY TETELEPTA, No. 08-72657
Petitioner, Agency No. A095-629-865
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2011 **
San Francisco, California
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Robby Tetelepta (“Tetelepta”) is an Indonesian Christian who fears religious
persecution. He seeks asylum, withholding of removal and protection under the
United Nations Convention Against Torture (“CAT”). The Board of Immigration
Appeals (“BIA”) found that Tetelepta’s asylum application was untimely and that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his testimony, while credible, did not establish eligibility for withholding or CAT
relief. We have jurisdiction under 8 U.S.C. § 1252, and we deny Tetelepta’s
petition for review.
The facts are known to the parties; we do not repeat them.
We review the BIA's legal determinations de novo, and its factual
determinations for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009) (citing Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n.1 (9th Cir.
2007)). Because the BIA did not adopt the decision of the immigration judge
(“IJ”), we look to the IJ’s determinations only to the extent that the BIA agreed
with them. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 n.3 (9th Cir. 2004).
I
Tetelepta’s asylum application was untimely. Our review regarding the
timeliness of his application is limited to constitutional issues and questions of law.
8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.
2007). Tetelepta has not “demonstrate[d] . . . the existence of changed
circumstances which materially affect [his] eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.” 8 U.S.C. §
1158(a)(2)(D).
2
Tetelepta, who left Indonesia because he feared religious persecution, has
not shown changed conditions. Even if the outbreak of violence in 1998 was
enough to constitute “changed conditions” under Fakhry v. Mukasey, 524 F.3d
1057, 1063 (9th Cir. 2008), Tetelepta’s four-year delay in applying for asylum was
not reasonable. See 8 C.F.R. § 1208.4(a)(4)(ii); see also Taslimi v. Holder, 590
F.3d 981, 986 (9th Cir. 2010) (noting that a delay of more than a year will
generally be unreasonable).
Tetelepta has also not shown “extraordinary circumstances” to excuse his
late application. 8 C.F.R. § 1208.4(a)(5). Generally ignorance of the immigration
laws is no excuse. Cf. Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir.
2003). Tetelepta’s admission that he was able to garner adequate legal counsel
within two weeks of seeking it suggests that his ignorance was not caused by
circumstances outside his control. Cf. Sagaydak v. Gonzales, 405 F.3d 1035, 1041
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n.7 (9th Cir. 2005) (citing Socop-Gonzales v. INS, 272 F.3d 1176, 1193 (2001) (en
banc)).1
II
Tetelepta has not established that he is eligible for withholding of removal
because he has not shown he will more likely than not be persecuted upon his
return to Indonesia. 8 C.F.R. § 1208.16(b)(1). Tetelepta has not suffered past
persecution. At most, Tetelepta has established harassment, which does not
constitute persecution. Gomes v. Gonzales, 429 F.3d 1264, 1266 n.1 (9th Cir.
2005); Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995).
Tetelepta also has not established that he will more likely than not be
persecuted in the future. Tetelepta has offered no evidence that he will be
individually targeted for future persecution. See 8 C.F.R. § 1208.16(b)(2).
Tetelepta has also failed to establish that the Indonesian government has made a
pattern or practice of persecuting similarly situated individuals. 8 C.F.R. §
1Without much explanation, Tetelepta asserts that the one-year time bar
violates his Equal Protection and Due Process rights. Because he ““does not allege
discrimination on the basis of a suspect class” or assert the deprivation of a
fundamental right, the statute is constitutional unless it has no rational basis.
Gonzales-Medina v. Holder, 641 F.3d 333, 336 (9th Cir. 2011). Tetelepta has not
met his “burden to negate every conceivable basis which might support” the
legislation. Id. (internal quotation marks omitted).
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1208.16(b)(2)(i)-(ii); see Wakkary, 558 F.3d at 1061 (finding similar evidence
insufficient to show a pattern or practice of persecution).
Finally, Tetelepta has not satisfied his burden under what has come to be
known as the “disfavored group analysis.” Id. at 1063, 1068-69 (applying this
analysis to withholding claims). Although we have recently held that Christians in
Indonesia are a disfavored group, see Tampubulon v. Holder, 610 F.3d 1056, 1062
(9th Cir. 2010), Tetelepta failed to produce evidence that he is at any greater risk
than any other member of the disfavored group. Tetelepta simply cannot prevail
on a “general, undifferentiated claim.” Lolong v. Gonzales, 484 F.3d 1173, 1179
(9th Cir. 2005) (en banc)..
III
As for his CAT claim, Tetelepta “presented some evidence that torture
occurs in Indonesia,” mostly from State Department reports, “but he has offered no
evidence that he is likely to find himself in such a position.” Wakkary, 558 F.3d at
1068. Tetelepta has failed to show that he will likely be tortured with the
acquiescence of the Indonesian government.
Petition is DENIED.
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